Wickstead & Ors v Browne

The applicants, Martin Thomas Wickstead and others, sought special leave to appeal to the High Court of Australia from a decision of the Court of Appeal. The core dispute concerned whether a common law claim in negligence could proceed when a breach of fiduciary duty was also alleged. The applicants argued that the Court of Appeal erred in its approach to the existence of a remedy, suggesting that the presence of a fiduciary relationship precluded any common law claim.

The legal issues before the High Court were whether the Court of Appeal correctly determined that a common law claim in negligence was not arguable, and whether the existence of a fiduciary relationship, on one view of the facts, extinguished the possibility of a common law remedy. The applicants contended that the majority in the Court of Appeal had refused to allow the common law claim to proceed by concluding that it was not open due to the existence of a fiduciary relationship and the applicants' beneficial interest.

The applicants' counsel indicated that the Court of Appeal's majority reasoning involved identifying certain difficulties with the common law claim and then concluding that it was not permissible because of the fiduciary relationship and the nature of the applicants' interest. The High Court noted that the form of the question presented for special leave, concerning whether a cause of action in negligence was arguable, was not ideally suited for the Full Court's consideration, although it acknowledged the Court of Appeal had dealt with it on that basis.